Saturday, April 5, 2014

The Supreme Court And Campaign Finance

Ruth Marcus, writing in the Washington Post, is more concerned about the reasoning behind the majority's opinions on campaign finance law.  She regards the Citizens United ruling, in which corporate contributions to PAC's were justified by arguing that corporations have the rights to free speech under the Constitution,  and that campaign contributions are an expression of free speech, as a bulldozer against campaign finance law.  The latest ruling by the Roberts Court is less crushing than Citizens United, but she is concerned about the next steps that might follow from the reasoning behind the majority opinions:

"The problem started with Citizens United, when Justice Anthony Kennedy looked at independent campaign spending and couldn’t imagine how it might corrupt candidates.
“In fact, there is only scant evidence that independent expenditures even ingratiate,” he scoffed. “Ingratiation and access, in any event, are not corruption.” The test for whether such spending corrupts, Kennedy said, is much stricter: whether it constitutes a quid pro quo of largesse for political favors."
Justice Kennedy's understanding of corruption is naive to say the least.  In order for campaign contributions to qualify as corruption they would have to a pass severe test.  That is, there would have to be a clear link between the contribution and a favor in return for the contribution.  Bribery, of course, is illegal, therefore it is restricted by existing criminal law.  The implication is that there is no need for campaign finance laws that regulate political campaigns.  Marcus argues that the Robert's court may pursue Justice Kennedy's reasoning about expenditures and bulldoze away what remains of campaign finance law.

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